Kerala High Court
The United India Insurance Co. Ltd vs Sobin K. Varghese on 27 March, 2024
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
MACA NO. 151 OF 2024
AGAINST THE AWARD DATED 23.08.2023 IN O.P(M.V) NO.1762 OF 2017 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/3RD RESPONDENT:
THE UNITED INDIA INSURANCE CO. LTD,
T.P.CELL, JOS TRUST BUILDING, CHITTOOR ROAD, KOCHI-31,
REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE,
HOSPITAL ROAD, ERNAKULAM, PIN - 682035
BY ADVS.SRI.GEORGE A.CHERIAN
SMT.LATHA SUSAN CHERIAN
SRI.GEORGE CHERIAN (SR.)
RESPONDENT/PETITIONER:
SOBIN K. VARGHESE
AGED 34 YEARS
S/O.LATE SEBASTIAN, NOW RESIDING AT KATTIL HOUSE,
S.N. NAGAR ROAD, MANNANTHURUTHU, VARAPUZHA FROM
MADAVANA HOUSE, FORT KOCHI, PIN - 6835 17
BY ADVS.SRI.A.R.NIMOD
SRI.M.A.AUGUSTINE(K/000511/2005)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.151 of 2024
2
JUDGMENT
Dated this the 27th day of March, 2024
This appeal is originated from an award passed by
Motor Accidents Claims Tribunal, Ernakulam (for short 'the
Tribunal') on 23.08.2023 in O.P(M.V) No.1762/2017. The
appellant is the insurer of the offending vehicle involved in
the motor accident.
2. For the sake of convenience, the parties to this
appeal will hereinafter be referred to as the petitioner and
respondent No. 3 in accordance with their status in the
Original Petition.
3. The facts of the case in brief are to the following
effect:
The petitioner sustained injuries in a motor accident
occurred on 05.08.2007. He was pillion riding on a
motorcycle bearing registration No.KL-07BF-947 which
was ridden by the 2nd respondent and when reached near
Bishop House, Pattalam, the petitioner was thrown from
the vehicle to the road due to the rash and nelgigent
riding by its rider. He sustained serious injuries and was
rushed to a hospital for treatment. Claiming a total sum
of `50,00,000/- as compensation, the above Original
Petition was filed before the Tribunal.
4. The registered owner, the rider and the insurer
of the motorcycle bearing registration No.KL 7BF 947 were
arrayed as respondents 1 to 3 in the Original Petition. All
respondents were served with notice. 1 st and 2nd
respondents did not turn up to contest the Original
Petition and therefore, were declared by the Tribunal as
ex parte. 3rd respondent filed written statement admitting
insurance coverage for the motorcycle bearing registration
No.KL 7BF 947 under the certificate of insurance issued by
them. Negligence on the part of the 2 nd respondent was
denied and that was sought to be attributed to the
petitioner himself. The Original Petition was contended as
not maintainable, since it was filed after ten years from
the date of occurrence. Claim petition was sought to be
dismissed for the above reasons.
5. Before the Tribunal, evidence was adduced by
the petitioner. An ocular witness was examined as PW1
and Exts.A1 to A17 and C1 were marked on the side of the
petitioner. 3rd respondent did not adduce any evidence.
On appreciation of the entire evidence, the Tribunal found
that the motor accident in question was occurred due to
the rash and negligent riding of the motorcycle bearing
registration No.KL 7BF 947 by the 2 nd respondent. The
Tribunal also found that the petitioner who had sustained
injuries is entitled to get compensation from respondents
1 to 3 jointly and severally. A sum of `26,98,436/- was
also arrived at as the compensation payable. Interest at
the rate of 8% per annum was also ordered. 3 rd
respondent was directed to deposit the said sum with
interest accrued on it from the date of filing of the Original
Petition till the date of realisation. Proportionate costs
was also allowed.
6. The award is under challenge by the insurer
mainly on the question of limitation. According to her, the
Original Petition having been preferred after ten years from
the date on which the motor accident was occurred, is
barred by limitation and ought not to have been entertained
by the Tribunal. According to the learned counsel, though
limitation period was not applicable at the relevant time for
filing a claim petition seeking compensation, it having been
filed with an inordinate delay of ten years, ought to have
been dismissed by the Tribunal. The learned counsel has
also relied on Purohit and Company vs. Khatoonbee
and another [2017(2) KLJ 260 (SC)] to rest her
contention.
7. Eventhough a ground was raised in the appeal
memorandum challenging the quantum of compensation
stood awarded by the Tribunal, at the time of argument
the learned counsel submitted that he is not pressing it.
8. The learned counsel for the petitioner contended
on the contrary that the Original Petition was filed when
time limit for filing the petition seeking compensation was
not prescribed by the Motor Vehicles Act, 1988 (for short
'the MV Act'). According to him, the documents marked
in evidence itself indicate that the motor accident was
occurred on 05.08.2007 and on that day itself, the
petitioner had availed treatment from Medical Trust
Hospital, Kochi. According to him, Ext.A2 is the accident
register cum wound certificate prepared there on
05.08.2007, the date on which the motor accident was
allegedly occurred. The learned counsel has also
produced an order passed by the very same Tribunal in
the very same Original Petition, while dismissing an
application raising limitation as a preliminary issue. The
Tribunal dismissed the application stating that the Original
Petition was not barred by limitation. It thus directed the
Original Petition to be proceeded with. That order was
passed on 04.11.2022, but no challenge was raised
against, by the appellant herein. The learned counsel for
the appellant contended in the context that the period of
limitation can be taken as a ground even in the appeal on
hand.
9. If question of maintainability is heard by raising a
preliminary issue and answered it by an order, it must be
challenged then and there.
10. It is pertinent to note from the impugned award
that even after passing of an order answering the
preliminary issue in the affirmative manner, the Tribunal
again raised that as an issue for trial and answered it in
the impugned award. In the said circumstances, a
challenge could be raised against answering of that issue
in the impugned award. Going by the appendix wherein
the documents marked in evidence and relied on by the
Tribunal are dealt with, a copy of FIR is found marked as
Ext.A1. It was dated 05.10.2007. According to the
learned counsel for the appellant, it was registered on the
basis of a private complaint filed by the petitioner before
the Magistrate Court after two months of the date of the
motor accident. But it is pertinent to note that the private
complaint was taken on file by the Magistrate after taking
cognizance of and it was referred to the police for
investigation under Section 156(3) of the Code of Criminal
Procedure (for short 'the Cr.P.C.') A final report was also
laid in the First Information Report (FIR) after holding an
elaborate investigation and that is marked in evidence as
Ext.A3. It was dated 30.10.2007. A copy of the wound
cum discharge certificate issued in favour of the petitioner
from Medical Trust Hospital, Kochi is also produced and
marked in evidence as Ext.A2 where also the accident was
shown as occurred on 05.08.2007.
11. A final report was marked in evidence as Ext.A3
without any objection being raised by the appellant. It
has been laid down by this Court in The New India
Assurance Co. Ltd. v. Pazhaniammal [2011(3) KLT
648] that a final report when produced and marked in
evidence, would form prima facie evidence of negligence
unless collusion is established by the opposite party by
adducing evidence. In the case on hand, no objection was
found raised against the marking of the final report in
evidence.
12. The learned counsel for the 3rd respondent has
raised a contention that the driving licence and other
vehicular documents of the offending vehicle were
produced by the petitioner himself and therefore, collusion
is there among the petitioner and the respondents. It is
for the 3rd respondent to adduce cogent evidence to
establish collusion alleged against the parties. It is
pertinent to note that the respondent failed to adduce any
evidence in the case on hand.
13. The factual situation in the decision relied on by
the learned counsel for the 3rd respondent is totally
different from the one on hand. The motor accident in
that case was occurred on 02.02.1977. The allegation in
the Original Petition was that the daughter of the
petitioners died in a motor accident occurred on
02.02.1977. But going by the medical documents on
record in the case, it was revealed that the death of the
victim was occurred only on 23.02.2005, after a period of
more than twenty eight years. Moreover, the Original
Petition seeking compensation if was preferred
immediately, then the period of limitation was applicable
for raising a claim for compensation under the Act. Though
the Original Petition ought to have been filed on
02.02.1977 seeking compensation for the injuries
sustained by the daughter of the petitioners, they
preferred to file the Original Petition only on the death of
his daughter after twenty years from the date of the
motor accident. In the above context that the Apex Court
held in the case cited that the claim petition being filed
after a considerable time is barred by limitation and
accordingly dismissed it.
14. The factual situation in the case on hand is
entirely different for the reason that on the very date on
which the motor accident was allegedly occurred, the
petitioner had attended a hospital and an accident register
cum wound certificate was prepared reporting the injuries
sustained by him. It is true that a crime was not
registered on that date, but only after two months, based
on a private complaint moved by the petitioner before the
Magistrate court. A crime was registered following the
filing of the private complaint and after concluding the
investigation, a final report was also laid which was
marked in evidence as Ext.A3. Moreover while preferring
the claim petition on hand, period of limitation was not
applicable. In the above circumstances that the Tribunal
was pleased to allow the Original Petition, and calculated
and awarded compensation in favour of the petitioner. The
Tribunal is justified in doing so and there is no reason to
interfere with the impugned award.
Appeal fails for the reasons and is dismissed.
Sd/-
MARY JOSEPH
JUDGE
NAB
